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Tuesday, December 22, 2009

What solutions exist for witness intimidation on both sides in criminal cases?

Catching up on my newspaper and blog reading this morning, I ran across two high-profile stories from outside of Texas on the subject of witness intimidation that deserve Grits readers attention:

By Criminals: From the Philadelphia Inquirer, there's a must-read series titled "Witnesses fear reprisal and cases crumble." According to this report, "Witness intimidation pervades the Philadelphia criminal courts, increasingly extracting a heavy toll in no-show witnesses, recanted testimony - and collapsed cases." A former prosecutor sums up the problem with this statement: "When people would ask me if I could guarantee their safety, I would say, 'Unfortunately, I cannot.'" (Just a taste of a massive series, btw, the whole thing is well worth a read.)

By Prosecutors: Meanwhile, via TalkLeft, I was fascinated to read a ruling (pdf) from U.S. District Court Judge Cormac J. Carmey dismissing a federal prosecution against William Ruehle, former CEO of Broadcom, finding that federal prosecutors had "intimidated and improperly influenced" three witnesses. In one particular instance, "The government met with [the witness] on 26 separate occasions and subjected her to grueling interrogation during which the government interjected its views of the evidene and, at least on one occasion, told her that she would not receive the benefits of cooperation unless she testified differently than she had initially in an earlier session." Jeralyn called Carmey's ruling the "strongest condemnation of prosecutorial abuse I've ever read."

Both types of witness intimidation are serious, endemic problems, though the brand being discussed in Philadelphia is much more frequently criticized. The Denver Post ran an also-excellent series on the topic a couple of years ago, finding that:

Only a handful of states have comprehensive witness protection programs and most do nothing to protect witnesses. Colorado's program has a $50,000 a year budget - cut from $100,000 this year by state lawmakers - which can be used to buy witnesses bus tickets or help them move to a new apartment.

But in the four years before [two local witnesses] were killed, the state spent an average of $29,895 a year protecting witnesses statewide, less than the amount Denver spends to plant flowers.

Most states including Texas and apparently Pennsylvania don't have comprehensive witness protection programs analogous to the feds. District Attorneys could conceivably spend asset forfeiture funds for that purpose, but I've never known one to do so. (For that matter, if I had my druthers, we'd be spending the Merida Initiative money in Mexico on witness protection instead of buying the Mexican Army helicopters.)

Regarding witness intimidation by prosecutors, that's arguably just as common and insidious a problem - one that's as difficult to solve as witness intimidation by crooks because prosecutors enjoy massive power and discretion combined with near-complete freedom from liability. In such a setting, with a mindset that one is fighting for the righteous cause of "justice," the line can be grey indeed between liberty and license.

In Florida this year, their legislature passed "Rachel's Law" which, among other protections, requires that law enforcement must "Provide a person who is requested to serve as a confidential informant with an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant." That's a start.

But the witnesses being coerced in the Broadcom case were wealthy, educated people, presumably with high-dollar attorneys, and they still could not stand up to the overweening power prosecutors brought to bear to secure what appears to have been false testimony. Judge Carmey said she had "absolutely no confidence" that one witness' statements reflected her own memory as opposed to "what the government thought her recollection should be." (Jeralyn's right, you really must read the whole thing to get a sense of how disgusted the judge is with the US Attorneys' alleged misconduct.) Besides having strong judges willing to stand up to abuse, I don't know how you police such behavior.

Let me know in the comments: Which type of witness intimidation do you think is more common? Which is the greater danger? What solutions might exist for each type of witness intimidation besides traditional witness protection programs and strengthening the right to counsel?

11 comments:

Anonymous
said...

Given the bias of Grits and may of the readers of this blog, I have little doubt that prosecutors will be villified on this thread.

With that said, those of us who deal with cases of domestic abuse, child abuse, and child molestation realize that witness intimidation or manipulation is an almost daily occurrence in these types of "intrafamily" crimes.

The frequency of threats against witnesses is also fairly high in gang related crimes and crimes that occur in prison.

I have worked in the legal field for several years. I've been involved in criminal cases, large and small, and lots of civil cases of all varieties.

I can say that prosecutorial and police intimidation exsist mainly in high-profile, high-stakes cases, i.e., felonies. Witness intimidation is more prevalent in the lower-profile, lower-stake cases with high emotional involvement, e.g., familiy law.

There are two solutions I see: give more teeth/money/support to laws and departments made to protect and go after intimidators; and record interviews/interrogations so as to make sure everyone stays on their best behavior and to preserve evidence of any aggressive methods.

The state agencies that offer protection and enforcement to parties and witnesses should be better funded and supported. When a witness is intimidated a strong and independent internal affairs department within government agencies can discipline the prosecutors and police, and judges can hold members of the public in contept. Also, those individuals can be individually prosecuted for harassment or "terroristic threats." In the end, it comes down to public willingness to fund such protection and administrative muscle to keep them funded.

A big help/deterrence would be to force prosecutors, investigators, and police to record all witness interviews. Knowing they are on tape would be a big deterrence to hard line intimidation and it would provide the necessary evidence for complaints later on. I'm sure the Broadcom sessions were either video taped or at least transcribed, and that's what supplied the court with the raw evidence to come down on the prosecutors. Just such a law was in the works during the last Texas Legislative session, but it was held up during the voter ID fiasco. Better luck next time.

"THE UNITED STATES ATTORNEY IS THE REPRESENTATIVE, NOTOF AN ORDINARY PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY WHOSE OBLIGATION TO GOVERN IMPARTIALLY IS AS COMPELLING AS ITSOBLIGATION TO GOVERN AT ALL, AND WHOSE INTEREST, THEREFORE, IN A CRIMINAL PROSECUTION IS NOT THAT IT SHALL WIN A CASE, BUT THATJUSTICE SHALL BE DONE. AS SUCH, HE IS IN A PECULIAR AND A VERY DEFINITE SENSE THE SERVANT OF THE LAW, THE TWOFOLD AIM OF WHICH IS THAT GUILT SHALL NOT ESCAPE OR INNOCENT SUFFER. HE MAY PROSECUTE WITH EARNESTNESS AND VIGOR. INDEED, HESHOULD DO SO. BUT WHILE HE MAY STRIKE HARD BLOWS, HE IS NOT AT LIBERTY TO STRIKE FOUL ONES. IT IS MUCH HIS DUTY TO REFRAIN FROM IMPROPER METHODS CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT IS TO USE EVERY LEGITIMATE MEANS TO BRING ABOUT A JUST ONE."I SINCERELY REGRET THAT THE GOVERNMENT DID NOT HEED THERIGHTEOUS WORDS OF THE SUPREME COURT.

Mighty words from the judge to which all prosecutors should be required to take an oath.

I think the main problem is that we all know that intimidation by criminals is wrong and should be stopped, but prosecutors think that they can righteously intimidate witnesses and that it's perfectly fine.

Who does it more? Who knows. Certainly it occurs by the boatload in domestic violence cases, but prosecutors will also do what they can to secure witness "cooperation." Intimidation and outright purchasing of testimony through reduced sentences for snitches are certainly a problem.

Jason Partney~ As a person who has a career in teh legal field, please answer a question: Per the suspicious death of my son, Joshua (19), who was found dead in Amsler Park, on Feb. 16, 2006, do you have any suggestions of how to obtain justice for him? www.americaiswatching.org (Joshua Robinson) Attached documents within the story, click on the underlined phrases. Contact me @welovejoshua@yahoo.com

Given the reportedly low success rate of the federal witness protection program (admittedly mostly due to the witnesses not cooperating) I don't see it making sense for states with much fewer resources to make this a high priority. Perhaps try to protect witnesses in-place rather than hide them away.

What are the punishments in Texas for witness intimidation? We have three different witnesses, in a family law case involving abuse of a child, that have been harassed and intimidated and we don't know how to file charges.

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